BEFORE THE APPEALS CHAMBER
Before: Judge Antonio Cassese, Presiding
Judge Adolphus Karibi-Whyte
Judge Haopei Li
Judge Sir Ninian Stephen
Judge Lal Chand Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 29 July 1997
TIHOFIL also known as TIHOMIR BLASKIC
DECISION ON THE ADMISSIBILITY OF THE REQUEST FOR REVIEW BY THE REPUBLIC
OF CROATIA OF AN INTERLOCUTORY DECISION OF A TRIAL CHAMBER (ISSUANCE OF SUBPOENAE DUCES
AND SCHEDULING ORDER
The Office of the Prosecutor
Ms. Louise Arbour, Prosecutor
Mr. Mark Harmon
Mr. James Crawford
The Republic of Croatia
Ambassador Ivan Simonovic Ambassador Branko Salaj
Mr. David Rivkin
Ms. Katharine Baragona
Mr. Ivo Josipovic
The Republic of Bosnia and Herzegovina
Madame Vasvija Vidovic
Ms. Jadranka Slokovic Glumac (on behalf of the Minister of Defence)
Defence Counsel for Tihomir Blaskic
Mr. Russell Hayman
Mr. Anto Nobilo
Mrs. Nela Pedisic
REQUEST FOR REVIEW
1. In an application dated 25 July 1997, the Republic of Croatia ("Croatia") requests review by the Appeals Chamber of the Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum rendered on 18 July 1997 by a Trial Chamber of the International Tribunal comprised of Judges McDonald (presiding), Odio Benito and Jan.
2. Croatia requests the Appeals Chamber to review the Decision of the Trial Chamber on the following grounds:
"(A) By ruling that the Tribunal has the authority to issue binding compulsory orders to sovereign States and their officials, the Trial Chamber has effectively expanded the competence of the Tribunal to cover States in violation of the Tribunals Statute, founding resolutions, and the accepted norms of international law;
(B) The Trial Chamber has incorrectly determined that the Tribunal has the inherent power to issue binding and compulsory orders to sovereign States and their officials acting in an official capacity, where the State or official is the object of the order;
(C) The Trial Chamber has incorrectly determined that the Tribunal has the express power to issue such orders;
(D) The Trial Chamber has incorrectly determined that the issuance of the American-style, third-party "discovery" device known as a "subpoena duces tecum" is a valid exercise of the Tribunals power to issue orders;
(E) The Trial Chamber has incorrectly determined that the Tribunal may issue orders to individual State officials requiring them to take actions within their official capacity;
(F) The Trial Chamber has incorrectly determined that the Tribunal has the power to review and determine a States national security claims."
3. In its application, Croatia also requested the Appeals Chamber to quash the subpoena duces tecum issued by the Trial Chamber.
RESPONSE TO THE APPLICATION
4. The Appeals Chamber has not deemed it necessary in this case formally to request the Prosecutor and Defence Counsel to respond on the question of the admissibility of the application by Croatia. The Prosecutor and Defence Counsel will of course have the opportunity to submit arguments on the merits of the application, as provided for in the Disposition below.
5. Croatia submitted its application pursuant to Rule 108 of the Rules of Procedure and Evidence, which reads:
Notice of Appeal
(A) Subject to Sub-rule (B), a party seeking to appeal a judgement or sentence shall, not more than thirty days from the date on which the judgement or sentence was pronounced, file with the Registrar and serve upon the other parties a written notice of appeal, setting forth the grounds.
(B) Such delay shall be fixed at fifteen days in case of an appeal from a judgement dismissing an objection based on lack of jurisdiction or a decision rendered under Rule 77 or Rule 91.
6. Croatia is not entitled to invoke Rule 108, however, since it is not a "Party", as defined by Rule 2 of the Rules of Procedure and Evidence, namely either "the Prosecutor or the Accused". A Bench of the Appeals Chamber has already pronounced on this subject in relation to Rule 72, which also refers to a "Party", in a Decision rendered in the matter of Dragan Opacic ( IT-95-7-Misc.1) on 3 June 1997. The said Decision reads in pertinent part:
5. On even the most cursory examination of the application, however, it is clear that the applicant ... lacks standing to invoke Rule 72 of the Rules of Procedure and Evidence. Rule 72 applies to preliminary motions filed by "either party". The term "party" is defined in Rule 2 of the Rules of Procedure and Evidence as "The Prosecutor or the accused". The detained witness, Dragan Opacic, who has not been indicted, being neither the Prosecutor nor the accused, is therefore not a party. Accordingly he has no standing to invoke Rule 72.
6. If this view of the matter appears overly legalistic, any other ruling would open up the Tribunals appeals procedures to non-parties - witnesses, counsel, amicus curiae, even members of the public who might nurse a grievance against a Decision of the Trial Chamber. This could not be. The Tribunal has a limited appellate jurisdiction which categorically cannot be invoked by non-parties.
7. However, on 24 July 1997 at the Tribunals Thirteenth Plenary Session, a new Rule was adopted, Rule 108 bis, which enables certain non-Parties only, namely States, to appeal interlocutory decisions of the Trial Chambers under certain circumstances. That Rule reads as follows:
(A) A State directly affected by an interlocutory decision of a Trial Chamber may, within fifteen days from the date of the decision, seek a review of the decision by the Appeals Chamber if that decision concerns issues of general importance relating to the powers of the Tribunal.
(B) The Prosecutor and the Defence shall be entitled to be heard by the Appeals Chamber.
(C) The Appeals Chamber, if it considers the request for review admissible may, if it deems it appropriate, suspend the execution of the impugned decision.
(D) Rule 116bis (B) shall apply mutatis mutandis.
8. This Rule was adopted to fill a perceived lacuna in the Statute and Rules, namely that a State whose interests were intimately affected by a Decision of a Trial Chamber could not request that Decision to be submitted to appellate review.
9. The Appeals Chamber deems it appropriate, therefore, to consider Croatias application as falling under the new rule, Rule 108 bis, rather than under Rule 108.
10. A further matter, however, remains to be considered. The Decision under consideration was rendered on 18 July 1997, i.e. before the above-mentioned Rule was adopted. The question, therefore, arises of the retroactive or otherwise effect of this amendment. The Tribunals Rules of Procedure and Evidence has this to say on the subject:
An amendment shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case. (Rule 6(C))
11. In the view of the Appeals Chamber, the operation of Rule 108bis will not in this case prejudice the rights of the accused, provided the appeal is heard expeditiously and does not unduly delay the trial proceedings, thereby violating the accuseds right to be tried without undue delay, as guaranteed by Article 21(4)(c) of the Tribunals Statute.
RULE 108 BIS
12. This is the first occasion on which Rule 108 bis is to be applied. The test to be applied under this Rule in order to decide upon the admissibility of Croatias request for review of the Trial Chambers Decision is:
(a) whether Croatia is directly affected by the said Decision; and
(b) whether the said Decision concerns issues of general importance relating to the powers of the Tribunal.
13. We find that the said Decision meets these two requirements. First, Croatia is clearly "directly affected" by a Decision which holds that both Croatia and high officials of Croatia may be ordered to produce documents, in particular military records, before the Tribunal. Second, whether the Tribunal indeed has the power to subpoena States and high officials of States is clearly an issue "of general importance relating to the powers of the Tribunal", indeed it relates to the Tribunals very competence.
14. Accordingly, the Appeals Chamber deems this request for review admissible.
REQUEST FOR THE SUBPOENA DUCES TECUM TO BE QUASHED
15. The Appeals Chamber will not accede at this point to Croatias request to quash the subpoena duces tecum addressed to Croatia and to Croatian Defence Minister Mr. Gojko [usak, but will stay the execution of the subpoena pending the outcome of the present appeal, pursuant to Rule 108 bis (C). Indeed, although Article 29 of the Statute remains of course applicable as regards the obligation of States to cooperate with the Tribunal, the subpoena at issue cannot be executed while its validity is being challenged in appellate proceedings.
AMICUS CURIAE BRIEFS
16. The Chamber considers that, given the importance of the issues raised by this matter, pursuant to Rule 74 of the Tribunals Rules of Procedure and Evidence amicus curiae briefs should be invited from States, non-governmental organisations and persons on the subjects mentioned in the Trial Chambers Decision, namely: (1) the power of a Judge or Trial Chamber of the International Tribunal to issue a subpoena duces tecum, i.e. according to the definition given by the Trial Chamber in its Decision of 18 July 1997, an order to a sovereign State compelling the production of documents, but not necessarily implying the assertion of a power to imprison and fine (see paragraphs 62, 64 and 78 of the said Decision); (2) the power of a Judge or Trial Chamber to make a request or issue a subpoena duces tecum to a high government official of a State; (3) the appropriate remedies to be taken if there is non-compliance with a subpoena duces tecum or request issued by a Judge or Trial Chamber; and (4) any other issue concerned in this matter, such as the question of the national security interests of a sovereign State.
THE APPEALS CHAMBER,
For the above reasons,
Pursuant to Rules 74 and 108 bis of the Rules of Procedure and Evidence,
GRANTS the request of the Republic of Croatia for the Appeals Chamber to review the Decision of the Trial Chamber dated 18 July 1997.
REJECTS the Republic of Croatias request to quash the subpoena duces tecum addressed to it;
SUSPENDS execution of the said Decision pending disposal of the present appeal by staying the execution of the said subpoena duces tecum;
INVITES States, non-governmental organisations and persons to submit to the Appeals Chamber amicus curiae briefs on the issues referred to in this Decision;
ISSUES THE FOLLOWING SCHEDULING ORDER:
(1) The Republic of Croatia to file its Brief by 18 August 1997;
(2) The Prosecutor and Defence to file any Briefs in Reply by 8 September 1997;
(3) The Republic of Croatia to file its Brief in Reply by 15 September 1997;
(4) Any amicus curiae briefs to be filed by 15 September 1997;
DONE in English and French, the English version being authoritative.
Dated this 29th day of July 1997
At The Hague